Sunday, September 21, 2008

Congrats “Indy Weekly” … but where was the “N & O”?

After more than seven years in jail, another African American man was released after being convicted for a crime which he did not commit and a conviction obtained by dubious prosecutorial conduct. Erick Daniels was convicted of armed robbery and sentenced to ten to 14 years, although no forensics evidence connected him to the crime, he did not fit the initial description given by the eyewitness victim, and another incarcerated man (who did fit the description) was offering to confess to the crime. And despite being a juvenile at the time (14 years old), the prosecutor (with the court’s acquiescence) tried him as an adult. Contributing to young Daniels’s misfortune was a defense attorney who allowed the prosecutor to introduce inadmissible evidence, and who allowed the prosecutor to take pock shots at his defendant by placing his immature defendant on the stand (an extraordinarily flagrant tactic in such a weak circumstantial case).

Late in 2004, Durham Attorney Carlos Mahoney took over Daniels’s case, and although losing on one appeal, he persisted in his attempts to have the courts take another look. In its May 23, 2007, edition, the “Independent Weekly” had an in-depth investigative cover story titled “Stolen Youth: How a 15 year-old was railroaded by Durham justice”. This article was the impetus for me to plead his case (while arguing for justice for former Durham District Attorney Mike Nifong) before the governor, the attorney general, the executive director of the State Bar, and others.

Nearly a year and a half after the “Independent Weekly” article, on Friday, September 19, 2008, following a day and a half of hearings, Judge Orlando Hudson threw the case out, ordered the release of Mr. Daniels (now 22 years old), and did not pursue the option of ordering a new trial, stating [that he] “had no confidence in the jury’s verdict that this defendant committed the crime. I think he did not.”

During the more than seven years that Erick Daniels was wrongfully incarcerated, I am unaware of an editorial or opinion piece by the “News & Observer” editorial staff questioning justice in the case. Even following the “Independent Weekly’s” explosive May 2007 cover story article, the “N & O” editorial staff remained silent. Why? I believe that it is because they, along with the majority of their readership, share an apathy or ambivalence when it comes to issues of selective justice that accrue to the detriment of the poor, disenfranchised, and people of color. The moral outrage at this grave injustice, which in my opinion far outweighs that to the Duke lacrosse defendants, is not even palpable. I do not expect that Attorney General Roy Cooper will proclaim Erick Daniels to be “innocent” of the crime, nor do I have faith that Governor Mike Easley will take steps necessary to see that Erick Daniels receives the paltry sum of $20,000.00 per year for each year of wrongful incarceration (that he deserves).

Very few people know the name of the prosecutor who sent Erick Daniels to jail, and her name was buried deep in the “News & Observer” article “Defendant walks free after 7 years in prison,” of September 20, 2008. No one is clamoring for her, Freda Black, to be ousted from her job or to be disbarred by the State Bar. The state of North Carolina is willing to condone her actions because the victim of the injustice is not from a family of wealth, status, and privilege. Mike Nifong’s defendants were, and that is why he was prosecuted, persecuted, and used to set an example for other prosecutors.

It is about time that the editorial staff of the “News & Observer” takes a courageous stand and makes a comment about the gross injustice represented by the fact that Mike Nifong (who gave the state 27 years of exemplary service as a prosecutor) is the only prosecutor to be disbarred (or severely disciplined) by the North Carolina State Bar since its inception. If all prosecutors were held to the standards used to disbar Mr. Nifong, then Freda Black, Michael Parker, David Hoke, Debra Graves, Ken Honeycutt, Scott Brewer, Bill Wolfe (who the State is currently protecting against a complaint for his misconduct in the case against James Arthur Johnson), and probably 99% of all prosecutors in the state would be disbarred.

12 comments:

I say again, Nifong, himself, via his more than 50 inflammatory statements to the media, at the start of the Duke Rape Hoax, is the individual who focused all the public attention on the case. He did nothing to discourage the gang of 88, the pot bangers, the Duke University Administration, the North Carolina NAACP from issuing publicity that was vicious, hostile, presumptive of guilt of the Lacrosse players. Then all of Nifong's violations came out, the tainted, faulty lineup, the concealment of and lies about the exculpatory DNA evidence, the witness intimidation attempts, CGM's multiple, conflicting, inconsistent accounts of the "rape", Nifong's failure to interview CGM until months into the case.

When complaints were made against Nifong, the North Carolina State Bar could not ignore them. What was going on in the case was already widely known, and the ultimate source of that knowledge was MIKE NIFONG! Mike Nifong got prosecuted and disbarred because he knowingly, illegally, unethically, unconstitutionally prosecuted three innocent men falsely accused of a crime, a crime which never happened. If Mike Nifong was selectively prosecuted, that was Mike Nifing's doing.

The Justice4Nifong gang is saying Nifong's violations should have been cause for disbarment only if they had been directed against black defendants. Considering who the Chairwoman is, the gang resents that Nifong's violations failed to convict innocent white men. I say, their call for Nifong's reinstatement is based on these considerations of race and class.

What happened in other cases to other prosecutors is irrelevant to what happened to Nifong. Their conduct might have been unconscionable. Please explain to me, if you can, Justice4Nifong, how that justifies giving Nifong a pass for his own rather egregious, despicable violations.

If Nifong had such a distinguished career in the Durham DA's office, then why was it that at the time the campaign started for the Democratic primary election for Durham County District Attorney, hardly any one in Durham County had heard of him, or could recognize him?

Cut the crap. The proper, legal way for Nifong to have his license reinstated is to appeal the decision of the Disciplinary Review Panel through the North Carolina Courts. That would mean arguing the case in open court which would mean exposing again to the public the extent of Nifong's misconduct. I doubt if Nifong would want the public to know anything more about his misconduct.

Your extra legal campaign to rehabilitate Nifong will not work, as I think the two of you well know. This is another attempt of the "Something Happened in There" fanatics to falsely depict this as a racially motivated, class motivated white on black incident.

The only thing racially or class motivated in this sordid affair was Nifong's deliberate prosecution of three innocent men for a crime he knew had not happened. He prosecuted them because he perceived them as rich white boys, because he hoped his illegal, unethical, unconstitutional prosecution of rich white boys would win him recognition and popularity in the Durham black electorate

I say, Nifong displayed a bit of moral turpitude in the Duke Rape attempted frame up. He acted as if he felt he was beyond any and all accountability, as if he were saying to the State Bar, so what if I flaunted any and all standards of decent, honorable behavior for a lawyer; what are you going to do about it?

After such grossly unethical behavior, after such a challenge, once ethics charges were lodged the State Bar had no choice but to act.

Nifong, himself, lit the fire in which he got burned. Now the Justice4Nifong gang of two is crying foul because he has scars from the burns.

Tracey Cline prosecuted Frankie Washington. It took her five years to bring the case to trial. She ignored the DNA that cleared him. Cline is the Democratic nominee for DA and will be unopposed in November.

Tracy Cline signed off on the request for the non testimonial order requiring all 46 caucasian members of the Duke Lacrosse team to submit DNA evidence to the Durham Police. A non testimonial order may be issued only to an individual whom a Prosecutor has probable cause to believe committed a crime. At the time of this nto, there was no evidence of a crime. Therefore there was no probable cause to justify issuing a non testimonial order. It was a fishing expedition and a violation of law and due process. Tracy Cline, in my opinion and in other peoples' opinions was a Nifong collaborator in the prosecution of three innocent caucasian males for a non existent crime.

Tracy Cline is African American. She was not prosecuted for misconduct in the Duke Rape attempted frame up. Could the Justice4Nifong gang of 2 explain this, in view of their claim that the Nifong prosecution was racially motivated.

I say, a lot, if not most, of the people who voted in Tracy Cline are people who voted in Mike Nifong in 2006, people who believed the Duke lacrosse players were guilty simply because they were well off caucasians. I say the people of Durham will tolerate Prosecutorial misconduct regardless of the race of the person who is victimized by it.

I wonder why the Justice4Nifong gang of 2 has not called for Tracy Cline's disbarment, in view of the Frankie Washington incident.

Tracy Cline DID NOT sign off on the request for the non testimonial order. That was ADA David Saacks. I apologize for that error.

Tracy Cline would have been Nifong's second chair had the Duke Rape attempted frame up gone to trial. After reviewing a few blogs, I am unable to find any record of Tracy Cline resisting Nifong's prosecution of the case. I believe she did claim to have little information about the case.

Having reread the 2007 Indy article and the recent articles in the N&O and the Herald-Sun, I agree that Daniels was convicted on a flawed identification, with no other evidence to support the flawed ID. Daniels' attorney made horrendous errors in presenting the defense. Those errors likely cost Daniels his freedom.

This was truly a miscarriage of justice in which Daniels served seven years in prison for a crime he almost certainly did not commit. He suffered greatly.

I do not, however, understand your claim of prosecutorial misconduct. The Indy article provides no basis for that claim. The recent articles in the Herald-Sun and N&O provide no basis for that claim. You have provided no information to support your assertion.

The mere conviction of an innocent man, while certainly a miscarriage of justice, is not always the result of misconduct. Human error occurs far too frequently.

Black certainly can be criticized harshly for her decision to proceed aggressively with a weak case. She based her decision to proceed solely on her interviews of Ruth Brown, whom she had known for years. She claimed that Brown was a credible witness. Credible witnesses do unfortunately make mistakes far too often to be reliable.

Nifong, on the other hand, never even interviewed Crystal (or claimed he did not do so) until December--long after the indictments. He had no physical evidence, no medical evidence, no corroborating witnesses. He had nothing that supported the accusation and much to disprove it. And yet he didn't even talk to the accuser.

Black did not pursue other leads. She can be criticized for that failure.

Nifong was not disbarred or found guilty of criminal contempt simply because he proceeded with a weak (or nonexistent) case. He was not disbarred because he failed to follow up on other leads or even that he refused to accept evidence offered by the defense. Your criticism of Black appears to be based solely on actions for which Nifong was NOT disciplined.

Nifong was disbarred for his dozens of highly inflammatory and false statements. The articles do not suggest that Black engaged in the same type of inflammatory media campaign. Unless the article is mistaken, there are no similar grounds for discipline.

Nifong was also disbarred for hiding evidence and lying to the court and to the defense attorneys. He agreed with Brain Meehan to hide the results that DNA from at least four unidentified males found inside and on Crystal Mangum. He lied when asked about additional DNA results. None of the articles assert that Black hid evidence or lied about it. Are the articles incorrect in that regard? If not, what are the grounds for discipline?

Erick Daniels was wronged, and he suffered greatly. That suffering alone, no matter how severe, does not alone prove misconduct.

The article was not clear what Black did that was wrong. So I ask you, Justice4nifong: What specifically did Freda Black do for which she should be disciplined?

Another highlight of Nifong's distinguished career in the Durham DA's office.

In Feb 2004, one Norman Brooks was charged with raping and molesting a young girl. The charges were dropped in September of 2005.

Brooks had two cases pending, both being handled by Tracy Cline. The weaker case, which was not the sexual assault against the child case, was to be dropped. There was a clerical error and the sexual assault charge was dropped.

The child's father was told the case was being reassigned to another Asstistant DA, Jan Paul. When the child's father contacted Assistant DA Paul, he was told by Mr. Paul he was not handling the case.

Nifong subsequently admitted a second mistake had been made when the child's father was referred to Assistant DA Paul.

According to this same blog entry, in April of 2006, there was another charge of rape made against an innocent man in Durham. The woman was convicted and punished for making a false police report. There was very little publicity about this event, in spite of concern expressed at the time by Nifong and others about violence against women. The accused was not treated as harshly as the Duke Lacrosse players - his bail was set at $100,000 as opposed to $400,000 for each of the Lacrosse players. Whoever he was, Nifong did treat him with contempt. I say that incident shows Nifong selected the Duke Lacrosse players for singularly harsh contempt.

More from the Liestoppers Meeting Forum, a post dated September 23, 2008 about Nifong's other rape cases.

According to that post, during Nifong's tenure as Durham County DA, about 52% of all rape complaints filed were dismissed. That was a higher dismissal rate than in any other county in North Carolina. It does not say that "decent, honorable" Nifong put a whole lot of emphasis on prosecuting sex crimes until CGM falsely accused members of the Duke Lacrosse team of raping her.

I say it suggests that he "SELECTIVELY"(you remember that word, Justice4Nifong?) picked the three members of the Duke Lacrosse team for prosecution.

With regard to the Erick Daniels case, the Independent Weekly reported that Robert Harris, the attorney who originally represented Daniels, testified that he did not effectively represent Daniels at his trial. Do you suppose, Justice4Nifong, that had something to do with Daniels' conviction?

Why have you not blogged about Mr. Harris' ineffective representation of Erick Daniels? Why have you not called for Mr. Harris to be investigated by the State Bar?